Florida Bar v. Adler

126 So. 3d 244, 38 Fla. L. Weekly Supp. 833, 2013 WL 6013420, 2013 Fla. LEXIS 2473
CourtSupreme Court of Florida
DecidedNovember 14, 2013
DocketNo. SC11-1863
StatusPublished
Cited by2 cases

This text of 126 So. 3d 244 (Florida Bar v. Adler) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar v. Adler, 126 So. 3d 244, 38 Fla. L. Weekly Supp. 833, 2013 WL 6013420, 2013 Fla. LEXIS 2473 (Fla. 2013).

Opinion

PER CURIAM.

We have for review a referee’s report recommending that Respondent Russell Samuel Adler be found guilty of professional misconduct and suspended from the practice of law for thirty days. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons more fully explained below, we approve the referee’s findings of fact, as well as her recommendations that Respondent be found guilty of violating the Rules Regulating the Florida Bar. We disapprove the referee’s recommendation that Respondent be suspended for thirty days. Considering Respondent’s improper conduct, and especially his false statements and actions to obtain a letter making false statements from his law firm, we conclude that a ninety-one-day suspension is the appropriate sanction.

FACTS AND PROCEDURAL HISTORY

The Florida Bar filed a complaint against Respondent Russell Samuel Adler, alleging various instances of misconduct relating to misrepresentations made to an apartment board and relating to his failure to use proper client settlement statements in connection with the practice of law. Specifically, the Bar alleged that Respondent had violated Rules Regulating the Florida Bar 3-4.3 (misconduct and minor misconduct), 4-1.5(f)(5) (closing statement to be executed upon conclusion of representation), 4-8.4(a) (violating or attempting to violate the rules, or knowingly assisting or inducing another to do so, or doing so through the acts of others), and 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). A hearing was held before a referee, and subsequently, the referee submitted her report to the Court, in which she made the following findings of fact.

Respondent was admitted to The Florida Bar on October 15,1986. From February 1, 2005, until its dissolution on or about November 1, 2009, Respondent was employed as an attorney by the law firm of Rothstein, Rosenfeldt, and Adler (“RRA”). Partners Rothstein and Rosenfeldt were the only equity shareholders in RRA. Around the time Respondent joined RRA in 2005, Mr. Rothstein advised Respondent that he would receive equity shares in RRA if Respondent met certain goals. However, despite his use of the title “Shareholder” and being designated as the vice president of RRA, Respondent testified that he- never received any equity shares in RRA.

While employed by RRA, in or about August 2009, Respondent purchased a cooperative apartment in New York City for which he obtained financing from Mr. Rothstein and/or entities created and funded by Mr. Rothstein. Respondent borrowed funds and signed a promissory note and mortgage for a loan that represented approximately 90% of the purchase price. Respondent took a payroll advance from RRA for the remaining 10% of the purchase price for which he also signed a promissory note. Although Respondent disclosed to the cooperative apartment board that he had borrowed 90% of the purchase price, he did not disclose that he had borrowed the other 10% by taking the payroll advance for which Respondent had signed a promissory note. The payroll advance was another loan. Respondent believed that the cooperative apartment board had a policy not to approve the purchase of a cooperative apartment where 100% of the purchase price was financed.

Also, Respondent advised a real estate broker involved in the purchase of the cooperative apartment, and the cooperative apartment board through the real es[246]*246tate broker, that Respondent had a 20% equity share in RRA. Although Respondent subjectively thought that he should have the equity share, he knew that he did not. Thus, Respondent’s assertions were untrue. He never had any equity shares in RRA at any time.

Respondent asked Mr. Rothstein, an equity shareholder in RRA, to direct the Chief Financial Officer for RRA to issue a letter to the cooperative apartment board that misrepresented Respondent’s financial status as a shareholder, Respondent’s finances, and Respondent’s access to additional funds. The letter, with modifications, was issued by the chief financial officer to the cooperative board.

Moreover, Respondent was the chair of RRA’s tort litigation practice group. During Respondent’s tenure managing the practice group for approximately four years, neither Respondent nor any other attorney who participated in personal injury cases associated with the tort litigation cases properly executed the client settlement statements in accordance with the requirements of the Rules Regulating The Florida Bar. See R. Regulating Fla. Bar 4-1.5(f)(5) (stating that the copy of the closing statement “shall be executed by all participating lawyers, as well as the client, and each shall receive a copy.”). None of the settlement statements prepared by Respondent’s department contained a space or line for a lawyer to sign the settlement statement. Respondent testified that he was responsible for supervising the attorneys in his group and for reviewing the settlement statements.

After making these factual findings, the referee recommended that Respondent be found guilty of violating rule 3-4.3 (misconduct and minor misconduct), rule 4-1.5(f)(5) (closing statement to be executed upon conclusion of representation), rule 4-8.4(a) (violating or attempting to violate the rules, or knowingly assisting or inducing another to do so, or doing so through the acts of others), and rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). As for discipline, the referee recommended that Respondent be suspended from the practice of law for thirty days. In recommending this sanction, the referee found two aggravating factors — a dishonest or selfish motive and substantial experience in the practice of law. The referee also found the following mitigating factors: absence of prior disciplinary record; full and free disclosure to disciplinary board and cooperative attitude toward proceedings; character or reputation; and remorse. Costs were awarded to The Florida Bar as the prevailing party, in the amount of $3,671.75.1

ANALYSIS

Neither party challenges the referee’s findings of fact or recommendations of guilt. The Bar challenges the referee’s recommended sanction of a thirty-day suspension, arguing that a ninety-one-day suspension is the appropriate sanction. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing [247]*247case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The case law and the Standards for Imposing Lawyer Sanctions support a suspension where, as in this case, a respondent engages in dishonest conduct that negatively impacts the legal profession. See Fla. Bar v. Schultz, 712 So.2d 386, 388 (Fla.1998) (“[Ejngaging in conduct involving dishonesty, misrepresentation, fraud, or deceit warrants suspension”); Fla. Stds. Imposing Law. Sanes. 7.2 (“Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system”).

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Cite This Page — Counsel Stack

Bluebook (online)
126 So. 3d 244, 38 Fla. L. Weekly Supp. 833, 2013 WL 6013420, 2013 Fla. LEXIS 2473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-v-adler-fla-2013.